In “normal” discovery, a litigant is usually asked to turn over “responsive material” not the keys to access all that material and more...

I honestly can't figure out why that "normal" route wouldn't make sense here. Why require full access to each others' accounts? As Hill also notes, this certainly violates Facebook's terms of service, and it seems odd that a judge would require users to violate the terms of service. It also seems strange since having such access can lead to additional mayhem as well. Beyond just accessing all sorts of content that may not even be relevant for the case, what happens if one of them contacts someone else using the other's account. It just seems to go way beyond what makes sense.

According to Justice

This is what happens when the Judicial branch doesn't understand the interwebs

This is what happens when someone who most likely doesn't understand technology makes rulings about technology. This would be akin to the same Judge making a medical ruling without understanding medicine, oh wait...

Re: This is what happens when the Judicial branch doesn't understand the interwebs

This is what happens when change comes, it needs some time for the old to die and the new to take over it.

But we do have a problem today, because the pace of innovation is faster than it was ever before.

Those old institutions are not capable of attracting and training people fast enough and worst they are not capable of seeing who are capable or not, they are not able to recycle people to the new forms and part of that is our own fault, it would be cruel to just throw out somebody because after several years of good service, we need a system that can take care of people but is able to identify who is more capable and able to do some job at a faster pace, something like a video game score board but for the legal system, but how do we give points to working people on subjects that are often so abstract that any decision could be never be right or wrong, but just feel wrong or right?

Discovery routinely violates the law

Quite. If they actually use the passwords they'll be felons according to Justice.

However, it is routine for judges to order legal violations during discover. Imaging entire hard drives, as is done in RIAA copyright cases, is wholesale copyright infringement--copying not just evidence but also computer programs, videos, music, text, etc,, all without authorization from all of the requisite copyright holders.

Re:

I am not a lawyer, but to be clear the "joint and several" normally comes up in torts in determining who is (or can be) liable, not in regards to who holds positive assets.

Family law is governed on a state by state basis, so there is some variation, but generaly assets that are held by both parties may be described as "marital" or "communal" or in some cases (mostly regarding land) as "joint tenancy with right of survivorship."

Most jurisdictions do allow certain types of properties which are acquired in certain ways to be held separately and to never become marital assets. Nevada for instance will allow inherited assets which are carefully kept separate from the marital assets to be treated as the sole property of one party or the other.

As to whether a facebook account could be viewed as a marital asset, I suspect (again I am not a lawyer, and I think this would not be an area of settled law anyway) that the answer would NORMALLY be no. The first thing is that many courts are likely to not view a normal facebook account as property at all. It is rather access to a service granted entirely at the suffrance of company. It would be more akin to a PO Box rented month to month.

Even were it to be viewed as property, depending on the jurisdiction there is a reasonable chance it would be viewed as solely belonging to the account holder. Facebooks TOS implies that a personal account is to be held by a person, and it is integrally linked with an individual.

There may be exceptions for product pages or corporate pages which may truly have economic value and might very well be marital property if say one spouse was the sole proprietor of a company started after the marriage. But an average individual account would probably not be viewed as an asset at all and probably wouldn't be viewed as a marital asset if determined to be an asset.

Re: According to Justice

Isn't this going to be illegal?

Didn't this site have a story earlier today where there was going to be a law passed to make it a felony to violate the TOS? Does that mean that judges can make exceptions or that the people are just SOL either way they go?

Re:

Of course not. If creditors come after my wife, my accounts are safe because she entered into a contractual agreement with them. Same with social networks. My wife joins a site, agrees to the TOS, and that's her account. I have no "right" to it.

Re: Re:

I am not a lawyer, and it depends on the jurisdiction and the details, but this is not always true.

Depending on jurisdiction, there are ways to make sure certain types of assets (and debts) are tied solely to one person or the other. But by default assets and debts after marriage are marital, and can apply equally to both parties. A creditor of a debt acquired after marriage is normally free to go after marital assets to satisfy the debt.

In Nevada as an example, assume one spouse has no income, but the other spouse has an income above the poverty level. If the spouse without income defaults, a creditor may first secure a judgment against the debt and then request a writ of execution to garnish the other spouses income, but at a reduced monthly rate of what they could garnish the debtor's income.

My wife, for instance, now has a job. But for a long time she didn't, and she still got credit cards in her name without my involvement without any problem because the creditors knew she was backed by my income.